During the past several years a variety of victim groups have forced the criminal justice system to pay more attention to the restitution needs of victims! Criminal courts, however, are still limited in the types of restitution they may award. Typically, sentencing judges can award restitution for the whole range of liquidated damages including the value of stolen or destroyed property, medical expenses, and lost past wages. In most jurisdictions, however, criminal courts cannot award restitution for unliquidated damages involving compensation for pain and suffering, or for lost future earning capacity. Crime victims must initiate a civil suit at their own expense to obtain a civil judgment for unliquidated damages, and then must attempt on their own to force a criminal, who may be violent, to pay these civil damages.
Our present system for awarding unliquidated damages to crime victims does not work well. Unliquidated damage issues primarily affect victims of personal violence. Considerable evidence exists indicating that victims face some obstacles in winning a civil suit, but even greater ones in collecting civil awards for unliquidated damages. Victims would be better off if these issues were handled by criminal courts. Criminal restitution frees crime victims from the responsibilities of bringing a civil action, but most importantly criminal courts can use probation officers and the threat of revocation to induce probationers and parolees to pay their restitution orders.
There are two possible solutions. First, civil collection methods could be improved to help crime victims. Second, the scope of criminal restitution could be expanded to encompass the full range of damage issues, which is already the practice in many European criminal courts. This paper will focus on the second approach, but will discuss the first one.
Mank, Bradford, "The Scope of Criminal Restitution: Awarding Unliquidated Damages in Sentencing Hearings" (1987). Faculty Articles and Other Publications. 259.